Animal cruelty case pushed to top court
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The Department of Justice has asked the U.S. Supreme Court to take up an animal cruelty case, arguing that an appeals court erred in declaring unconstitutional a federal law that bans selling depictions of animals being tortured.
The first case to go to trial under the new law -- passed in 1999 -- occurred in U.S. District Court in Pittsburgh. Robert J. Stevens, a Virginia man who sold videos of pitbulls fighting and killing pigs, was charged with three counts of selling depictions of animal cruelty.
The law was initially written to protect small animals that are maimed, tortured and killed in "crush videos," in which a woman usually in high heels stomps on animals as a type of sexual fetish.
However, in 2004, the U.S. attorney's office in Pittsburgh applied it to dogfighting videos.
In January 2005, a jury convicted Mr. Stevens after deliberating for just 45 minutes.
He appealed his conviction and 37-month prison sentence to the 3rd U.S. Circuit Court of Appeals, arguing that the videos were protected free speech.
The court in July agreed with him and not only vacated his sentence but also struck down the federal law he was charged with violating, ruling that it was "constitutionally infirm because it constitutes an impermissible infringement on free speech."
On Monday, the Solicitor General's office filed a petition asking the Supreme Court to review the case.
Because of the many requests the court receives, it is very unlikely that the court will take any given case. Out of approximately 10,000 petitions filed each year, the court only grants about 75 to 80 of those.
However, in this instance, because it's the government making the request, and a federal law was found to be unconstitutional -- not to mention that three of the circuit judges joined in a dissenting opinion on the matter -- there may be a better chance.
"All of those factors would be important," said Ken Gormley, interim dean at the Duquesne University School of Law. "It is significant when a solicitor general gets involved because it shows a lot of careful reasoning usually."
He noted that the solicitor general is often called "the conscience of the government" and is seen as a protector of not only the government's interests, but the courts' as well.
In the petition filed on Monday, the solicitor general claimed that the 3rd Circuit was wrong in its findings and that this type of speech should not be protected by the First Amendment.
"The court of appeals' decision fundamentally undermines Congress's effort to assist the states in stopping a unique and reprehensible type of criminal act," according to the filing.
In the petition, the government contends that it has three main interests that support the law in question: that it reinforces animal cruelty laws in all 50 states; that it has an interest in preventing the additional crimes associated with the gruesome images of mutilation of animals; and that it has a "moral interest in suppressing depictions that have no social value and that are created solely to depict suffering by animals."
The petition claims that things such as dogfighting and other acts of cruelty are often part of a criminal subculture, including gang activity, illegal gambling and drug dealing. Further, it says that dogs bred and trained to kill pose an acute public safety risk.
In trying to link this law to other forms of unprotected speech -- like obscenity -- the government argued that the depictions "offend the sensibilities of most citizens and have appeal only at the most base level."
And, "like child pornography, there is a widespread consensus that the underlying acts are reprehensible," the solicitor general wrote.
But in its opinion, the 3rd Circuit dismissed that argument, writing that it would not equate child pornography -- the most recent category of unprotected speech to be recognized by the Supreme Court in 1982 -- with the new animal cruelty law.
"Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm," wrote the 10-judge majority.
The judges empathized with the government's case, but they could not agree that it trumps a person's constitutionally guaranteed right to free speech.
"The government is correct in arguing that animal cruelty should be the subject of not only condemnation but also prosecution." But, they continued: "No matter how appealing the cause of animal protection is to our sensibilities, we hesitate -- in the First Amendment context -- to elevate it to the status of a compelling (governmental) interest."
First Published December 17, 2008 12:00 am